Julian Edward Canny v The Owners-Strata Plan No 4983

These proceedings concern a property in Elizabeth Bay known as Elizabeth Bay Gardens (“EBG”). EBG consists of a 15 storey tower containing a mix of one, two and three bedroom apartments and three levels of parking on the lower ground, ground and upper ground floors.

EBG was completed in 1970. It was the subject of a development application to Sydney City Council (“the Council”) in 1968 and on 10 February 1969 the Council issued a Development Consent under the Local Government Act 1919 (NSW) (“LGA”), which contained a description of the application, which included the following (see: Exhibit A4 p 40052):

I shall refer to this Consent of 10 February 2017 as “the Consent”.

On 29 October 1970 Strata Plan 4983 (“SP 4983”) was registered by the Registrar-General as a strata plan comprised of 165 lots, 87 of which were parking lots (“the parking lots”), and 78 were residential lots (“the residential lots”). Portions of the property were designated as common property such as the “motor room”, “laundry”, “lobby”, “incinerator room” and stairs. It will be observed that the plan of subdivision’s 87 parking lots were less than the 104 spaces referred to in the Consent.

Although quite a number of owners of residential lots also purchased parking lots, not all of the parking lots were taken up by residential lot owners. The Plaintiffs are all owners of parking lots who are not owners of residential lots

From 1970 until 2014 parking lots were used by parking lot owners, whether residents of EBG or not, and without incident. Parking lots were bought and sold. In 1970 the price of a parking lot was $1,500. In 2006, for example, two lots were purchased by Mr Canny for $130,000, and in 2014 a parking lot sold for an amount of approximately $200,000 - $220,000: see T72.7 and see also Exhibit A2 p 20178.

In December 2014 the Owners Corporation Strata Plan 4983 (“the Owners Corporation”) passed a resolution creating a new by-law entitled Special By-Law 7 Car Spaces, which repealed the existing By-Law 7 and which was in the following terms (see: Exhibit A4 p 40305):

Up until that time the only by-law relevant to parking was a By-Law passed on 22 November 2007, also known as Special By-Law 7. It required parking lot owners to offer parking lots to “occupiers of the lots in the strata scheme” before leasing or licencing to anyone else. No complaint is or has been made about that By-Law. It was purportedly repealed at the time of the introduction of SBL7.

SBL7 contains reference to “the letter in relation to the development consent.” The letter, to which reference is made, it is agreed, is a letter of 12 September 2012 from the Council to the Owners Corporation. The letter (see: Exhibit A4 p 40242) sent to the Owners Corporation’s solicitor (Mr Mueller) states:

In the letter of 28 August 2012 (see: Exhibit A4 p 40236), to which the Council’s letter responds, is a letter from the Owners Corporation’s solicitor that explained that the Council was advised that the Owners Corporation wanted to sell a car space that formed part of the common property and which would require subdivision and creation of a new lot thereby. The letter sought an indication as to whether the Council would permit the subdivision and, if so, whether the Council would impose “conditions of development consent requiring the owner of the car space to be an owner or resident of a unit in the strata scheme.” The earlier letters from and to Williams Roncolato, referred to in Council’s letter of 12 September 2012, are in evidence as Exhibits 3A and 3B.

By its defence the Owners Corporation admits that the letter of 12 September 2012 has no legal effect.

After passage of SBL7, the Owners Corporation took steps which, on the Plaintiffs’ case, were designed to enforce SBL7. These steps included installing a security access point and issuing new security swipe cards to residential lot owners. The Owners Corporation has issued new remotes to residential lot owners that give them access to all floors of the car park: see T55.6 – T55.12. There is also evidence of an attempt to preclude non-residential owners from using the swimming pool and accessing some common areas.

Prior to the passage of SBL7, in March 2014 the managing agent for the Owners Corporation, Mr John Sarraf, was instructed by the Owners Corporation to write a letter to the owners in the terms of a letter dated 18 March 2014 (see: Exhibit A4 p 40258) which letter informed owners of the terms of the 1969 development consent and said, inter alia:

Since the threat of, or commencement of, these proceedings the Owners Corporation has not proceeded with its plan to restrict non-residential parking lot owners from obtaining access to the pool area of the building. Mr Sarraf says that he told the Executive Committee of the Owners Corporation that the attempt to restrict non-residential lot owners from accessing common property was not permitted: see T81.35 – T81.43. Mr Ashurst SC, who with Mr G. Farland appears for the Owners Corporation, informed the Court at T19.45 – T20.4 that the Owners Corporation was not trying to stop the Plaintiffs (for whom Mr M. Evans of counsel appears) from using the facilities of the common property.

There were some matters that were conceded not to be in dispute:

It is clear that at no time prior to 2014 has the Owners Corporation told any non-resident parking lot owners that there was any impediment to them using the parking lots to park their cars. It would appear that, until the second half of 2012, the Owners Corporation, through its various officers, had no awareness of any such impediment, although there is some evidence that in 1980 the then Secretary of the Owners Corporation had sought clarification on the issue of the terms of the Consent: see Exhibit A2 p 20210, and pp 20211 – 20212.

In the 1980 letter to the Council, the then Secretary of the Owners Corporation asked whether ownership of the lots by persons not otherwise associated with the building would be a contravention of the development application and the Council would be “within its rights to refrain from issuing” a Certificate of Compliance. The Council responded (see: Exhibit A2 p 20212):

A note of Council (see: Exhibit A2 p 20211) suggests that the Council’s view as at 15 October 1980 was that Council had no jurisdiction because Council “did not concern themselves in retaining garages solely for use of tenants. However, Council’s new policy does not allow the sale of garages to persons other than tenants of units. No action, by Council, is available at this stage.”

There is some opacity in relation to the reason or motive for the introduction by the Owners Corporation of SBL7. Mr Wight-Boycott, a member of the Executive Committee of the Owners Corporation, sought to explain the motivation for the By-Law as being only to draw attention to both existing owners and prospective owners of the contents of the Consent: see T66.15 – T66.22 and T68.39 – T68.43. Mr Sarraf asserted the same motivation at T80.24 – T80.37. Mr Sarraf conceded, however, at T84. 35 – T85.26 that his letter of 18 March 2014 was not consistent with merely informing owners of the existence of the terms of the consent. The Owners Corporation, by its cross claim, seeks to injunct the Plaintiffs from parking their cars in the parking lots owned by them. Mr Ashhurst says that there is no impediment to the Plaintiffs using the pool and all common areas, all they cannot do, he says, is park their cars in their parking lots.

In my view SBL7 was clearly introduced to preclude non-resident owners from parking their cars in their parking lots. I say that because:

The Owners Corporation contends that SBL7 must be a valid by-law since it is just an iteration of the Model By-Law number 21 to Schedule 2 of the Strata Schemes Management Regulation 2010 (NSW). I do not accept that contention because of clause 1 (and the definitions in clause 2), which references the Council’s letter of 12 September 2012 and quotes words from that letter, but does not in clear terms state what the parking lot owners cannot do, nor does it make clear that Council has indicated that it does not propose to take any action in respect of the Consent or that residential lot owners who own parking lots cannot park in the parking lots if they do not reside in the building. Mr Ashhurst indicated if the Court was of the view that the By-Law was defective in form he would seek instructions to issue a fresh by-law in the terms of clause 3 only, to comply with the Model By-Law (see: T112). In my view SBL7 is deficient in form, but I accept that that conclusion, whilst it should lead to the setting aside of the SBL7, whatever the outcome of this case, is not determinative of the issues in this case.

It is hardly surprising that the Plaintiffs should feel aggrieved by the passing of SBL7, and by the Owners Corporation’s attempts to preclude them from using their parking lots. They, or their parents, have paid a considerable amount of money for the parking lots in an open market in which residents and non-residents were able to purchase lots and they have been paying the levies on the lots for a period of forty years. Mr Ashhurst submits that none of these matters has any bearing on the case, but he did make the point that the Consent, if binding in respect of parking, is binding whatever the consequence and that, whilst current non-resident owners who have paid considerable amount of money for parking lots might be aggrieved to now be told that they cannot park their cars on their parking lots, this arises from the effect of the Consent and the failure of each of the solicitors who acted for the non-resident owners on purchase to obtain a copy of the Consent, or to write to the Council and obtain a letter like the letter of 12 September 2012 or Exhibit 3.

The Local Government (Amendment) Act 1951 (NSW) had attached to it the County of Cumberland Planning Scheme Ordinance, which was referred to by the parties. Sections 28 and 29 of that Ordinance (“the Ordinance”) were in the following terms:

It was agreed by counsel for both the Plaintiffs and the Owners Corporation that the Ordinance is the relevant source of the legislative requirements and restrictions at the relevant time and that any use permitted as at 1969/1970 will be continued by later planning schemes and ss 76A and 76B of the Environmental Planning and Assessment Act 1979 (NSW) (“EPA”).

The table to clause 26 of the Ordinance relevantly provides that “residential buildings” is a purpose for which a building can be erected or used “only with the consent of the responsible authority”. “Residential building” means a building other than a dwelling-house (i.e. a building which is for only one family) designed for human habitation together with such outbuildings as are ordinarily used therewith: see clause 24. It follows that, to build EBG and use it as a residential building, the developers were required to obtain consent and that the use which was permitted was that of ‘residential building’. The Owners Corporation contend that the only use permitted was that found in the Consent. The Plaintiffs contend that the use could be found either in the Consent (as a matter of construction) or in the approval by Council of the subdivision.

The pleadings raised a number of issues, but in the course of the hearing these were reduced to only three:

In the period between 10 February and August 1970, the Consent was amended in several respects to increase the number of flats, but there was no amendment in relation to the car parking provision.

In construing a development consent I am guided by the summary of principles agreed and noted in Bunderra Holdings Pty Ltd v Pasminco Cockle Creek Smelter Pty Ltd [2017] NSWCA 263 per Payne JA, with whom McColl and Leeming JJA concurred, at [158]:

The Plaintiffs rely on what was said in Ryde Municipal Council v Royal Ryde Homes (1970) 19 LGRA 321 [1970] NSWLR 277 by Else-Mitchell J, namely:

There are several matters to note concerning the terms of the Consent:

Mr Ashhurst, in support of the construction of “occupants of the building” as meaning occupants of the flats and not occupants of the parking spaces, submitted that:

Mr Evans contended that:

The Owners Corporation contends that the Consent, in using “occupants of the building”, must mean residents, not owners of the parking lots, and that cases on “occupant” which point in the opposite direction are not relevant.

In Baulkham Hills Shire Council v Mekol Pty Ltd (No 2) (1970) 20 LGRA 165 Hardie J had to consider the meaning of “occupants”, which appeared in s 313(j) of the Local Government Act 1919 (NSW), which required a council, in considering an application for approval, to take into consideration:

In Warringah Shire Council v KVM Investments Pty Ltd (1981) 45 LGRA 425, ‘occupant’ within s 313(2)(b) of the Local Government Act 1919 (NSW) was said by Hutley JA to include squatters or protestors who refuse to move. In Elidock Pty Ltd v NB Stone & Associates Pty Ltd [2008] NSWSC 1278, Young CJ in Eq held that occupation of a premise did not necessarily imply residence.

The word ‘occupant’ is similar to ‘occupier’. There are legislative provisions which use the word ‘occupier’ rather than ‘occupant’, for example:

I do not find any of these cases or the legislative provisions set out above in [32(5)], [34], [35] and [36] of any real assistance in determining what was meant by “occupants of the proposed building” as used in the Consent.

There was no evidence identified that the Council was aware that rights of way were to be granted to the occupants of Onslow Gardens and Muedon.

Mr Ashhurst contended that, in assessing what the terms of the Consent mean, it is not appropriate to have regard to any matter after the Consent was issued. This principle is similar to the approach taken to contracts i.e. that post contractual conduct is not relevant as an aid to construction: see Agricultural and Rural Finance Pty Ltd v Gardiner (2008) 238 CLR 570, at 582 following James Miller & Partners Ltd v Whitworth Street Estates (Manchester) Ltd [1970] AC 583. He submitted that it is not appropriate to consider what occupant meant in 1971 or even 2017, and then consider if that is what the Consent means. Mr Evans did not challenge this principle, but rather contended that I could draw from what the Council said in 1970 what its intentions were (see: T102.45 – T103.5 and T105.31 – T105.32). This was linked to the question of the significance of the registration of the plan of subdivision. I think that that second question is a separate matter, and I will deal with it below.

In my view the reference to ‘occupants’ was intended to refer to people who would reside in the building and who were to be distinguished from visitors who did not. I doubt very much that the Council were requiring the developer to provide parking for people who were not residents of the building, but rather were owners of the parking lot when the creation of those lots had not occurred and might never occur. I say ‘might never occur’ because it was possible that the owners of residences would have the right to use a designated space or any of a number of spaces without being provided with their own particular lots.

In coming to this conclusion I have given consideration to the fact that the Consent speaks of ‘use’ and then in terms of ‘provision for’. It seemed on first reading that the use which the Council was specifying was as residential flats and the ‘provision for’ clause was not a ‘use’, and nor (it has been agreed) was it specified to be a condition and merely requiring a building which had enough space for that number of cars. It is difficult, however, to escape the conclusion that the Council was, by the ‘provision for clause’, adding a requirement for use.

It follows, in my view, that, as matters stood in February 1969, and at least until October 1970, the Council required that there be 104 spaces for parking (within the three lower levels in the building) and that those 104 spaces were for parking of vehicles owned by residents of the building.

I should also refer to another theme in the parties’ respective submissions. The Plaintiffs claimed that residential use of a building included provision of parking to people residing in neighbouring buildings. The Owners Corporation submitted that the use of the parking lots by non-residents is not a ‘residential use’ of EBG. The purpose of the Council approval was to permit the construction of flats for dwelling and there was an acceptance that the persons residing in the flats would need a certain number of car parking spaces. The purpose, it is said, was not to provide non-residents with car parking spaces. Apart from the fact that there would be no reason why a person residing on the North Shore might not become a lot owner with the intention of leasing the space to a person living in the street or even working in the area, rather than being someone living next door to EBG, I do not think that the provision of parking for non-residents is a residential use of EBG, and no authority was cited by Mr Evans to support that contention that it is.

The Owners Corporation submitted that if (as it contended) the Consent provided for parking on a limited or restricted basis it could not, of itself, be used as a springboard to parking generally. This is supported by Botany Bay City Council v Parangool Pty Ltd [2009] NSWLEC 198, in which Lloyd J held that a consent for “the warehousing/storage and distribution of alcoholic goods” did not permit a change to use as a general warehouse.

I note that there is in evidence the s 149(2) Planning Certificate. It relevantly states that residential flat buildings are permitted with consent of Council. It also prohibits “Car Parks”: see p 40134. There was some attempt to suggest that to allow non-residents to park in the parking lots would mean that EBG was being used as a car park, in breach of the Sydney Local Environment Plan 2012. The definition of ‘car park’ in the plan “means a building or place primarily used for the purpose of parking motor vehicles… whether operated for gain or not”. I do not think that EBG can be said to be used primarily for the purpose of parking cars since its primary purpose is residential. This is really the mirror image of the point that parking is ancillary to residential use only if the owner of the vehicle resides in the building.

The next issue is what is the effect of the approval by the Council and registration of the plan of subdivision for EBG, which included both 78 residential lots and 87 parking lots.

The Plaintiffs contend that, if the Consent did not grant consent for non-resident owners the right to park in the spaces provided within the building, then the registration of the plan of subdivision did do so. The Owners Corporation contends that the registration of the plan of subdivision says nothing about the use that can be made of the lots.

Section 20 of the CST Act was in the following terms:

Section 3(1),(2) and (3) and s 4(3) of the CST Act provided:

Before considering the respective arguments it is appropriate to summarise from the evidence the events leading up to the approval of the Strata Plan:

It will be observed that the Council approval and the Certificate issued do not refer to the nature of the lots (residential or parking) but the Strata Plan shows “1 level parking” and “3 level parking” within the footprint of the building and the small lots are shown as located in the basement, sub-basement and ground floors (see: Exhibit A5 p 50084). The Strata Plan, itself, makes clear that lots 1 – 75, 162 - 164 are large (and inferentially are intended to be the residential lots) and lots 76 - 161 are small (and inferentially are intended to be the parking lots). There can be no doubt whatsoever that Council was made aware and proceeding upon the basis that 87 of the lots (the smaller sized lots) were parking lots and 78 lots (the larger sized lots) were residential lots.

By reason of s 20 of the CST Act, the Council was required to issue a certificate if it was satisfied that separate occupation would not contravene the provisions of any relevant scheme, and that any consent or approval required had been given in relation to the separate occupation of the proposed lots and that the proposed subdivision of the parcel into lots for separate occupation would not interfere with the existing or likely future amenity of the neighbourhood having regard to the circumstance of the case and the public interest.

Mr Evans submitted that if a person has the right to possession of the car space they occupy that car space by parking their car in it: see T121. This accords with general principle (see: Wheat v E Lacon & Co Ltd [1966] AC 552 at 577 per Lord Denning and see Melbourne Tramway & Omnibus Co Ltd v Mayor of Fitzroy [1901] AC 153 at 169). Mr Ashhurst did not offer any alternative view about occupation of a car space, saying that “you have a right to possession of it and you take possession of it”. He agreed that consent had been given to the parking lot owners to occupation (see: T145.16 – T145.40). Mr Ashhurst’ s position was, however, that occupation and use are two very different matters and s 20 of the CST Act is concerned only with occupation and not use.

The Owners Corporation contends that s 20 of the CST Act is concerned with occupation of the land and not use, referring to Smith v Randwick Municipal Council (1950) 17 LGR (NSW) 246, Wehbe v Pittwater Council [2007] NSWLEC 827, and Currency Corporation Pty Limited v Wyong Shire Council [2006] NSWLEC 692 and submits that approval of the strata plan did not involve any use of the land on which the building stands, and “it is the Consent that permitted the separate occupation of the flats and the accompanying car spaces”: see paragraph 74 of the DFWS.

In Smith v Randwick Municipal Council (1950) 17 LGR (NSW) 246 Sugerman P said at 250:

This passage was cited with approval and followed in Wehbe v Pittwater Council [2007] NSWLEC 827. In Smith the owner wanted to subdivide what had been three blocks of land into two blocks of equal area. There was at the time of the application a pair of semi-detached buildings on the land and the owner contemplated the division of the two new blocks through the existing building, which Council opposed.

In Wehbe the owners of land, on which was erected a kiosk and other buildings, wanted to subdivide the land and demolish the existing structure, but without any application on foot for the new building. The question was whether the application could be characterised as one seeking to change an existing use of the land to another use and Preston CJ of the Land and Environment Court held that it could not because neither demolition, nor subdivision, involved use of the land.

In Currency Biscoe J, in dealing with an argument about use in connection with a block of flats built in 1958, said at [36]:

In Apex Developments Pty Ltd v Holroyd Municipal Council [1974] 1 NSWLR 313 Sheppard J, in considering whether or not the defendant Council was entitled to refuse to grant a certificate in connection with a plan of subdivision, pointed out that s 20 is directed to the question of separate occupation, not ownership: see p 319.

Mr Evans contended that none of the cases relied upon by the Owners Corporation was relevant to the present case.

I accept that, generally speaking, approval of a subdivision ‘simpliciter’ is not an approval of use. However, s 20(1) of the CST Act itself draws a distinction between subdivision for the purposes of a Strata Plan and subdivision of the normal kind to which provisions of the LGA apply, and none of the cases cited by the Owners Corporation concern the present situation i.e. where a plan of strata subdivision with provision for separate lots for residential use and for parking is, after construction of the building, approved pursuant to s 20 of the CST Act and the Council is fully appraised of the purpose of the subdivision. Of the two cases relied on by the Owners Corporation which deal with a strata plan Currency was concerned with circumstances, legislative provisions and issues that have no relevance to the present case. Apex was a case concerned with whether a plan submitted to Council met the requirements of a Strata Plan- Sheppard J held that it did not because the plan did not show the whole or any part of the land being divided into two strata. I do not regard Apex as providing any support to the Owners Corporation’s submissions.

Even accepting that the Strata Plan itself does not expressly refer to “parking lots” and “residential lots” (or ‘residential units’ and ‘car parking spaces’) the objective facts that arise from the material upon which Council was proceeding, including the Strata Plan itself, and to which I have already referred- namely that the Council approved of a Strata Plan in which 87 of the lots were created for owners of those lots to park their vehicles, cannot be ignored.

Reference was made in the course of submissions to the question of whether the Council could, when approving the plan of subdivision, have imposed a condition relevant to the parking lots. The Plaintiffs had in their pleading contended that no condition was imposed by the Council at the time of approving the plan of subdivision, which contention has been made good. Mr Evans submitted that Council could have done so (see: T123.37) and Mr Ashhurst contended that it could not and relied on Gibbs v Ashfield Municipal Council (1988) 65 LGRA 425 (see: T142). Gibbs was dealing with s 37 of the Strata Titles Act 1973 (NSW) (a provision similar, but in important respects not identical to s 20 of the CST Act), which does preclude a consent from imposing conditions unless the condition related to a ‘utility lot’, dealt with in s 39 of the Strata Titles Act 1973 (NSW). Section 39 did permit the imposition of conditions in relation to utility lots (including lots for “the accommodation” of motor vehicles). An example of a condition of that kind and similar to the type for which the Owners Corporation contend here, is the one imposed in Michael Raad Architects Pty Ltd v Strathfield Municipal Council [2018] NSWLEC 1019.

The Strata Plan in this matter, however, was registered in 1970, before the introduction of the Strata Titles Act 1973 (NSW), so the relevant legislation at the time of the registration of the plan of subdivision was the CST Act. It did not contain any restrictions on conditions being imposed in contrast to s 37 of the later Act.

In Granville Developments Pty Ltd v Holroyd Municipal Council [1969] 2 NSWR 377; (1969) 18 LGRA 34, 37 - 38 Else-Mitchell J explained the operation and effect of s 20 of the CST Act as follows:

If the Council in the present case was not satisfied that separate occupation of the proposed lot would not contravene the provision of the relevant scheme and that consent or approval had not been given in relation to the separate occupation of the proposed lots, or if it did not regard the plan as complying or did not approve of the subdivision for any reason, it was, in any event, open to it to refuse to approve the Strata Plan and to not have issued the certificate- that it could take that course is supported by Granville Developments and see also Williams v North Sydney Municipal Council (1965) 11 LGRA 224 per Hardie J.

I do not accept the Owners Corporation’s submission that no grant of any right to use the parking lots for parking can be implied from the approval of a Strata Plan for separate parking lots. In my view by approving a subdivision of the building which created 87 lots for the parking of cars, Council must be taken to have approved, thereby, the occupation of those lots for parking. As Mr Evans contended, parking a car very obviously is the use (or at least the principal use) that will be made of a parking lot.

By force of s 4 of the CST Act the certificate issued indicated that the Strata Plan had been approved by the Council and by force of s 3 of the CST Act, Council’s approval of the creation of separate parking lots entailed separate occupation of those lots by owners of those lots and the sale, devolution and dealing with those lots permitted to the same extent as land held under the Real Property Act 1900 (NSW). To accept that a person can be the owner of a parking lot and occupy that lot without any requirement that he be a resident of EBG, as the plan of subdivision does, carries with it, as Mr Evans contended, the right to use the parking lot for its intended purpose without restriction, and consent to that use by Council.

It follows, in my view, that Council must have necessarily intended to resile from, or revoke, the requirement that car spaces created could only be used by residents of EBG, and must be taken to have accepted that whoever became the owner of a parking lot created by the Strata Plan approved by Council, whether a resident or not, could use the parking lot for its intended purpose. The use of the parking lots by the Plaintiffs does not entail any breach by them of s 76A or s 76B of the EPA, as contended by the Owners Corporation. Whether the Council consented to the use of the parking lots by non-resident owners because it understood that not every owner of a residential lot would have a car and a positive effect of taking cars off the street would be promoted ([50(4)] supra may be of relevance in this connection), or because it was considered that all or most of the parking lots would be purchased by the purchasers of residential lots, or for some other reason, it is not necessary to determine, but it might explain why Council has been unwilling to take any action in respect of EBG’s failure to comply with the terms of the Consent to date.

Whilst in order to arrive at the conclusion to which I have come, as set out above, it has not been necessary to address the disparity between the reference in the Consent to 104 car spaces within the building and the 87 parking lots that have in fact been created, I think that the fact that the requirement for 104 car spaces has not been adhered to is a matter of interest. I raised this matter with Mr Ashhurst (see: T93 – T95 and T99 – T101) and there are no documents in evidence which explain the change, other than the approval of the Strata Plan with only 87 lots for parking. One possibility raised by Mr Ashhurst is that the Council had, by issue of the s 317A Certificate, thereby approved the reduction in numbers from 104 to 87 (see: T94). There is no document in evidence which establishes whether, as at the date of the s 317A Certificate, there were in fact 104 car spaces and in any event if a s 317A Certificate can effectively amend a condition of Consent this would support the Plaintiffs’ contention that a Certificate of approval of the Strata Plan, with no restriction on the parking by parking lot owners can also do so. In my view the approval of only 87 parking lots in the Strata Plan (as opposed to 104 car spaces in the Consent) can be taken to reflect a change of position of the Council, which would preclude the Council from contending that 104 car spaces were still required, and if that is correct that only strengthens the Plaintiffs’ case. A further consequence would be that the residential lot owners who also own parking lots would not be in breach of any planning law by parking their vehicles in those lots, and nor would the Owners Corporation for not ensuring that there were 104 spaces.

It follows that each of the Plaintiffs is entitled to park his or her vehicles on their respective parking lots. It also follows that SBL7 is defective for an additional reason and should be removed from the Register.

Having regard to my conclusion in respect of the second issue, it is not necessary for me to consider the issue of injunctive relief. I observe, however that:

Mr Evans has submitted that, if successful in this litigation, the Plaintiffs should not only obtain a costs order in their favour, as is usual, but that no share of the costs ordered to be paid by the Owners Corporation should be paid by them as lot owners. Mr Ashhurst did not put anything in opposition to that and accepted that there was authority to support the Plaintiffs’ approach (see: T86.32 – T87.12). I will invite counsel to consider, consequent upon these reasons, the appropriate form of orders which should be made, which orders should include the issue of costs. I will fix a timetable by which the Plaintiffs are to provide to the Owners Corporation a proposed form of orders and the Owners Corporation are to respond. In the event that there is disagreement about the issue of costs, or any other aspect of the form of orders, I will require submissions on those matters to be provided, and provision can be made in the timetable for that eventuality.